from the government-overreach dept

While Puerto 80 has already appealed the rejection of its attempt to get back its domain names (the two rojadirecta domains that Homeland Security seized), the separate case, involving the permanent forfeiture of those domains, continues. As you may recall, Puerto 80 put forth its motion to dismiss, noting that the government appeared to be wholly making up a legal standard that doesn't exist, while also showing that Puerto 80 did not break criminal copyright law. The government responded bizarrely by trying to argue that Puerto 80's actions don't really matter, because it's not about Puerto 80... and then spent most of its brief explaining why Puerto 80 did things that broke the law.

Now Puerto 80 has responded, and this time it's coming out even more forcefully against the government, explaining how its theory for seizure and forfeiture is absolutely ridiculous, and would effectively allow the government to seize all sorts of property if it so chose, including any search engine domain, any telephone network infrastructure, any electrical company's infrastructure -- just because such tools could be shown to have been used by someone, somewhere, possibly for illegal purposes, even if the company in question had nothing to do with it:

The government’s view of its powers under the civil forfeiture law, articulated for the first time in its opposition to Puerto 80’s motion to dismiss, is breathtaking. In the government’s view, it doesn’t need to allege that Puerto 80 violated any law, or even engaged in any civil wrong, in order to seize and shut down its Internet domain name. As long as the government thinks that someone, somewhere in the world, is engaged in copyright infringement, it believes it is entitled to seize any asset that might be connected to that infringement, whether or not the owner engaged in any wrongdoing, and whether or not that asset in fact “facilitated” the commission of any crime. And it further believes it is entitled to seize Internet domain names and shut down protected speech without ever having to prove that the speech was, in fact, unlawful, much less that the owner of the asset was responsible for any crime.

On the government’s view of its powers, it is entitled to seize the Google, Bing, or Yahoo web site, because someone, somewhere, has used those sites’ search engines to find infringing content. It is entitled to seize Verizon’s telephone network for the same reason. It is entitled to seize the power company, since numerous crimes are “facilitated” by the use of electricity. And the only reason the government lost the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713 (1971), is that it asserted the wrong statute. Had the government simply seized the New York Times’ printing presses, pointing out that they were being used to “facilitate” the disclosure of government secrets, it would have been able to block the disclosure of Daniel Ellsberg’s secrets.

As the filing notes, "this cannot be the law." And, almost certainly, it's unconstitutional.

The full filing (embedded below) is fantastic. It no longer dances around the issue and flat out points out that the government's argument is incoherent, pulling different actions from different actors together to try to pretend that a single party did something wrong.

But in attempting to argue its new “facilitation” theory, the government cites to different acts by different actors (Puerto 80, other websites that are streaming content, and unidentified users who follow links to the content) for different elements of the alleged offense. Not only does this approach render the government’s opposition brief incoherent; it does nothing to change the fact that the Complaint fails to plead the elements of criminal copyright infringement by Puerto 80 or any other actor.

Specifically, Puerto 80 points out that in order to show criminal copyright infringement, the government needs to show that a party willfully infringed for profit. But it doesn't do so. It shows that some people may have infringed. And it shows that Puerto 80 may have profited. But it does not (and cannot) show that Puerto 80 itself willfully infringed for profit. In fact, it doesn't even try, because it knows that Puerto 80 itself did not infringe directly.

Finally, Puerto 80 points out that even if the government's argument is accurate, then the law must be unconstitutional:

Under the government’s newly-raised construction of the statute, the government may use the forfeiture statute to make an end-run around the First Amendment by seizing a lawful channel of communication. Such a seizure prevents lawful speech, and constitutes a prior restraint on that lawful speech. The government’s suggested construction of the forfeiture statute would render it unconstitutional, and should therefore be rejected.....

[....]

If the government’s theory of “facilitation” were adopted, the government would be
permitted to shut down a search engine, website, newspaper, and printing press not just prior to a
determination of the illegality of the content, but without ever having to show that it was
operating unlawfully. It would permit, for instance, the government to shut down an entire
printing press and newspaper for running an advertisement that contained allegedly infringing
content. Or it would permit the seizure of a search engine because of its indexing allegedly
infringing material. Such actions are plainly unconstitutional.

It's nice to see Puerto 80 hitting much harder on these key points, which it seemed to skirt around in the earlier filings. I'm wondering if the Justice Department even realizes how screwed up the argument it's trying to make really is. It never shows any criminal copyright infringement, but then says it can simply seize a domain because of some criminal copyright infringement which doesn't even appear to exist. The whole thing is incredible. Hopefully the court recognizes this and smacks the Justice Department around a bit for its ridiculous claims in trying to take these domains.

Second, the speech in question (infringing copyrighted streaming of sporting events) is likely not protected speech.

Third, if Rojo didn't want to be subject to US law, they should make their website both unavailable in the US and not registered with a US company.

Their facilitation argument is pretty transparent as well, because they know that search engines are not specifically intended nor narrowly focused on infringement. They may list some infringing sites, but that is not the focus of their business. Rojo website exists only to violate copyright. While it may be legal in Spain, it is not legal in the US. A website such as this in the US would be shut down (see the US based cased reported on Techdirt recently).

They are trying hard, but they keep trying to act like they are doing nothing wrong by US law. It's a stretch, and the previous judge has already stated that it would be a failing argument to try to downplay what the website does.

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1) show me otherwise. The site is not down.

2) the nature of a criminal complaint is "innocent until proven guilty", but that does not by it's nature infer innocence, only the lack of a judgement. Illegal acts are not protected by the first amendment, and as such, it is likely that the "speech" on this website isn't as a result.

3) If they offered access to copyrighted material to US citizens, and profited from doing it, they have pretty much qualified at least on the surface for breaking US law. Clearly judges agree, as warrants were issued to seize the domain, and so far every judge has shut down their arguments in the case.

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1. The site is not down only because of the resiliency of the internet. The whole intent of domain seizure was to shut them down.

2. "innocent until proven guilty", but only if you are not been accused of been guilty, which would mean you are guilty. Very convenient interpretation.

3. Every websites that features women not covering their hair, exposing large swath of skin are guilty of violating some middle eastern country's law. Since the websites are available in those countries, "they have pretty much qualified at least on the surface for breaking [some country]'s law". So their domain should be seized.

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No, I can't. The site is down. Whether it is up at another location is not relevant. Let's try an analogy:

Barnes and Noble has many locations. Two locations start offering a book for sale, that happens to contain copyrighted content not "authorized" by the copyright holder. So the copyright holder complains to the government, and the government "seizes" and shuts down one of these locations, but not the other. Questions: Is free speech infringed? Does it matter that location #2 sells all the same books as the first, or that I can get the same books from Amazon?

2) the nature of a criminal complaint is "innocent until proven guilty", but that does not by it's nature infer innocence, only the lack of a judgement. Illegal acts are not protected by the first amendment, and as such, it is likely that the "speech" on this website isn't as a result.

Without a judgement, innocence is presumed. Without sufficient evidence, innocence is the default position. The government cannot show that Puerto 80 offered infringing material, because they did not; simply offering a website where users post links to where infringing material is located (among other things they can post) is not illegal.

3) If they offered access to copyrighted material to US citizens, and profited from doing it, they have pretty much qualified at least on the surface for breaking US law.

They were not in the US, their servers were not in the US, much of their userbase is not in the US, and their actions were ruled legal twice in their home country. The only way the US government can do this is because in order to have any .com address, anyone in the world must indirectly interface with Verisign, a US company, who controls the .com root domain. And I'll ask again, how can a few lines of text controlled by Verisign possibly be enough to hold someone who operates entirely outside of the US accountable to US law?

Clearly judges agree, as warrants were issued to seize the domain, and so far every judge has shut down their arguments in the case.

Unless I'm mistaken, all that you're referring to here are rubber stamped warrants where the only side presented was the governments. Please name a single case where a judge has ruled on the merits of this case after hearing arguments from both sides.

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You said: "Unless I'm mistaken, all that you're referring to here are rubber stamped warrants where the only side presented was the governments. Please name a single case where a judge has ruled on the merits of this case after hearing arguments from both sides"

Me: A warrant is rarely issued AFTER a hearing, it is usually issued based on evidence from investigators shown to a judge as part of a sworn warrant.

Rojo has already had one hearing, which the judge both shot them down and told them that it would be pretty laughable to try to claim that their site wasn't about copyright infringement. For that, the court seems to be sitting with the prosecution.

As for your book example, it's a fail. No "location" was seized. At best, the number sign on the front of the building was removed.

2) Innocent until proven guilty does not mean that a case cannot be built and parties charged, evidence seized, and such. Drug dealers don't have their drugs seized after they are found guilty, they are seized when a warrant is issued as part of the investigation.

3) Offering services in the US, working on a US domain would appear to be enough of the "camel's nose in the tent" to merit legal action. It is the same reason poker sites have all withdrawn from the US market, because they don't want to risk being subject to US law, even if they are based in other countries.

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Just one question.

WTF is this about "Offering services in the US" bullshit? Their site is on the internet. Unless you can show, with evidence, that they are specifically targeting users residing in the US, I'll consider that worth less than the bits used to transport it to my screen.

As to poker sites, the only reason they withdrew was because the US government started having their bank accounts seized. Good example! Harassing poker sites did nothing to slow down people gambling on the internet, and in fact pushed them to less reputable places where real crimes such as fraud and identity theft are more likely! Way to go, US Government! Good job watching out for your citizens!

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As for your book example, it's a fail. No "location" was seized. At best, the number sign on the front of the building was removed.

A more accurate analogy if you're talking about a store is that there was a highway that led to the store and the government ripped it up, put crime scene tape around it, made it impossible to put up a detour sign, put up a sign up that says "Illegal Activities One Mile Ahead"; then said RD is OK because they can build another road somewhere else at their own expense, even if a substantial number of would-be and existing customers won't know the other road exists or how to get there and will be deterred from even looking because of the sign saying the store did something illegal.

And it did all that without notifying the store and without accusing them of anything, then has the audacity to say that they don't need to accuse them of anything, and that they don't actually had to have done something wrong, it's just all OK because someone used the road to get to the store, where they bought a book in the "common weaknesses in bank security" section--which is well known among bank robbers--and might have used the knowledge to rob a bank.

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Pigeon hole? A site that exists and profits only because of illegally sourced feeds? I don't have to work very hard. Again, put the site on US soil, and just like the site Mike talked about a couple of weeks ago, it gets shut down fast. Rojo wouldn't last a month in the US.

I was paraphrasing the judge's comments. I am sure the judge is allowed their own analysis, right?

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Illegal under whose laws? Remember, the issue here is that other than the domain names, the site is not on US soil and therefore should not be subject to US laws. End of story.

"Again, put the site on US soil, and just like the site Mike talked about a couple of weeks ago, it gets shut down fast."

Put half the sites hosted in the US on Iranian or Chinese soil and see how fast they get shut down. Does that mean US sites should be subject to the laws of those countries? I'm going to guess you'd object to Chinese courts trying to impose their rules on sites that happened to have a .cn variant.

"Rojo wouldn't last a month in the US."

Neither would a lot of Hentai sites. Does that mean you should be dictating the law to Japanese?

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Paul, if companies do business in Iran or China and offer content which is illegal in those countries, then yes, the site owners risk getting in legal trouble in those countries. If they use a .CN domain and offer illegal material, the domain will be seized.

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Out of curiosity, where exactly is this magical line drawn between doing 'a little' infringement (Google, Bing, etc.) is ok, but doing 'a lot' it's wrong. Please specifically define or quantify that for us.

Re:

1. Let's apply the same logic to other situations:

"Your honor, my client didn't kill the victim because the victim's soul is immortal and is living on in another plane of existence."

2. The speech being restrained is not the infringement of copyrighted streams of sporting events. The speech being restrained is all of the speech being made on the website, including Puerto 80's discussion forums and webmaster's content. Since Puerto 80 isn't infringing any content, restraining their speech without evidence that they are actually infringing is illegal. Which is the entire point that Puerto 80 is making that you keep ignoring.

3. You've got it backwards. If the US government wants the website unavailable to the US, it needs to pass such a law making it so. It's not Puerto 80's responsibility that the internet doesn't have international boundaries.

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2. The speech made on the website was made in the furtherance of profiting from illegal sports streaming. The discussion forums and such were oriented towards and in the aiding and abetting of said acts. It is unlikely that this speech is "protected".

3. The US governement doesn't make the website come to the US, the website operator makes it available. It is up to the website operator to limit their operations to where their products are legal.

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Umm, I know a whole lot more about the internet than you would like to admit.

Geo location software can fairly accurately tell you what country a user is coming from, and you can operate from there. Clearly the poker companies are able to conform to US law, so why can't rojo?

Yes, yes, yes... I know the usual dribble about VPNs and routing around and using TOR and all that other crap, but if someone wants to actively bypass blocks and take steps to access things they are not legally allowed to have, that is their own issue. The website operator makes a good faith attempt to block out people who cannot legally access their products, and things are basically "all good".

You guys really need to learn a bit more about how the internet really works, not the theoretical crap they teach you in class.

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Clearly the poker companies are able to conform to US law, so why can't rojo?

Because by being SOLELY in a separate legal and sovereign jurisdiction (Spain) that is not the USA it does not have to abide by US laws in any way shape or form, unless their are treatise or letters of understandings between both US and Spanish jurisdictions.

The poker companies are only conforming to US laws because their back-end payment providers seem to kowtow to the USG, which is another controversial issue in itself. Hopefully the US$ will soon not be the world standard and legal entities in other countries will not have to constantly be on the lookout for the USG whom think in some egotistical holier than thou way that they know best for everyone on the planet.

Btw, geoloc software is full of too many false positives to be evidentially sound under current technology. Also a non-US website does not need to block out people if their website is legal in their own jurisdiction. Otherwise all US Websites would need to block out chinese, pakistan, etc citizens too.

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Poker websites are legal in the jurisdictions they operate in. The issue isn't payment processors kowtowing to anyone, because if that was the only case, the could accept US players anyway, just using payment methods like cash or third party payment systems outside of the US.

The reality is that they cannot legally operate in the US, the US government won't go after the payment companies, they will go after the poker companies, and as such, they block US players.

Rojo could very easily use GeoIP software to block US visitors to their site. They could decline to do business with US companies, they could decline to take advertising from US companies, etc. They chose to use a US registered domain and offered their website to US users. There isn't much more to say after that.

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2. The speech made on the website was made in the furtherance of profiting from illegal sports streaming. The discussion forums and such were oriented towards and in the aiding and abetting of said acts. It is unlikely that this speech is "protected".

Holy Shitting Batman, Batman!

Really? Wow this takes the cake.

So, I watch a bank robbery (an illegal activity) then discuss it (giving details about what happened and how it went down) with others online. I am now aiding and abetting an the website should be SEIZED? No wonder you don't understand constitutional issues and subtle details like prior restraint.

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They are still up in spite of this illegal seizure and the seized domain name is considered free speech so try again.

"Second, the speech in question (infringing copyrighted streaming of sporting events) is likely not protected speech."

How can you in one breathe claim that no speech was shut down and in the next say that even if it were, it isn't really free speech and shouldn't be subject to the law? You are cherry picking the speech that was affected and incorrectly doing it at that. You ignore the forums and comments that are now not accessible that are clearly protected. You also ignore the fact that none of this supposedly infringing copy-written material was hosted on this site.

"Third, if Rojo didn't want to be subject to US law, they should make their website both unavailable in the US and not registered with a US company."

They don't have a problem with being subject to US laws as they are written. Their main problem is being subject to a made up interpretation akin to Frankenstein’s monster of incorrectly applied laws that do not apply to this situation.

"They are trying hard, but they keep trying to act like they are doing nothing wrong by US law. It's a stretch, and the previous judge has already stated that it would be a failing argument to try to downplay what the website does."

Wrong again, they are doing nothing wrong by current US laws in spite of the attempts by lobbyists like you to get US and EU law changed to make it illegal. I highly suspect you are somehow involved in this whole thing and if you honestly believe that this illegal seizure is within the law, you deserve to live in the future you have helped create.

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"You are cherry picking"
"You ignore the forums and comments"
"You also ignore the fact(s)"

His entire shtick in a nutshell.

"I highly suspect you are somehow involved in this whole thing"

I've said it before - if he honestly means what he says, he's either very bad at getting across what he means or simply cannot accept that other viewpoints can exist for honest reasons. If he's paid to do this, someone seriously needs a refund.

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Aw, did I hurt your feelings?

"I won't answer personal attacks like this."

OK, but I'll link back to this comment next time you try insulting Mike or claiming other posters you don't agree with are pirates. Can't have double standards, even for those who try to hide behind an AC identity.

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The Russians love you, they want to shutdown Google and all Americans sites that operate in Russia they will love the ability to seize every American asset that they can find.

Also you got Pakistan, Venezuela, Chile, Brazil, China, India and other countries all just waiting to seize Americans assets, if that option is on the table you can bet they will all do the same thing.

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First off, no speech was shut down. The rojo websites are still up.

So you would be happy knowing that the police can come to your house and board up your front door because some entrainment industry person said that you were doing copyright infringing activities. No trial, no charges filed, nothing more than being accused of something by somebody not involved with law enforcement. But that should be okay to you since you still have a side door to enter?

So they didn't really block access to your house, just the front door, you can still access your house from the side door, and you can live with that?

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Speech at a specific venue was shut down. A long history of First Amendment case law says this can be prior restraint as much as outright blocking the speech.

Second, the speech in question (infringing copyrighted streaming of sporting events) is likely not protected speech.

Zero percent of the speech on the Rojadirecta site was such speech. They do not actually stream anything; they merely link to those streams.

This means that 100% of the speech that was suppressed is protected speech. It also means that no infringing speech whatsoever was supressed. The conent is still up at the websites that actually stream the content; that speech was not blocked or supressed in any way whatsoever.

Third, if Rojo didn't want to be subject to US law, they should make their website both unavailable in the US and not registered with a US company.

First of all, it's almost impossible to make any website unavailable in the U.S. Even the BBC can't do it, and they try.

Second of all, everyone who wants a .com gTLD has to register with a U.S. company. Seeing as this is the most desirable gTLD of the entire internet, including overseas companies, this demand would drastically reduce all foreign countries' internet presence. Furthermore, unless it is specifically a ccTLD (like .uk or .nz), gTLD's are supposed to be region-neutral.

Their facilitation argument is pretty transparent as well, because they know that search engines are not specifically intended nor narrowly focused on infringement.

None of that means that they "facilitated" anything. They do not upload content. They do not make it easier for anyone to upload content. They do not give material assistance to the primary infringers, even after the fact. None of that is even alleged in the Government's complaint.

The only thing they do is the same thing search engines do: provide links to content, much of which is infringing, some of which is not. Their "intent" or "focus" is completely irrelevant in this regard.

They are trying hard, but they keep trying to act like they are doing nothing wrong by US law.

They did nothing wrong under U.S. law, since U.S. law does not cover any infringement that occurs outside of the U.S.

Keep in mind that streaming is considered a performance under U.S. copyright law, not reproduction or distribution. This means that even if someone in the U.S. watched the streams, they were not breaking U.S. laws, because people who watch an infringing performance (unlike those who make infringing copies) have not broken any U.S. law whatsoever. Just like you can't arrest or sue anyone who was in the audience at a show where a band performed an infringing cover song.

The government has not actually named any infringement whatsoever that happened in the U.S. They do not allege that the streaming content was on any U.S. server, or that anyone in the U.S. actually uploaded anything. They have not presented one shred of evidence that any infringement at all happened within U.S. jurisdiction.

If Rojadirecta did "aid and abett" anything - which they did not - then it "aided and abetted" infringement outside the U.S. jurisdiction; and that facilitation, itself, was entirely outside U.S. jurisdiction.

But let's pretend they were in the U.S. Would they have broken any criminal law? No. Would they have "aided and abetted" the breaking of any criminal law? No. The only criminal law that might have been broken is by the primary infringer - the uploader. The only ones who could be said to "aid and abett" that infringement are the sites that actually stream that content. And the crime itself is, at most, a misdemeanor - even for repeat offenses.

Furthermore, if they were in the U.S., then they could simply follow the notice-and-takedown system, and be free from any liability whatsoever. (Of course, since they're not in the U.S., they are under no obligation to follow those rules - only the ones in their home jurisdiction, i.e. Spain, which two Spanish courts said they did.)

Well the court has somehow ruled that confiscating things like cars and cash from people suspected of crimes such as drug trafficking is perfectly legitimate even if the person is never charged or convicted of committing a crime, so they may have an uphill battle here.

Re: CSMcDonald

"Well the court has somehow ruled that confiscating things like cars and cash from people suspected of crimes such as drug trafficking is perfectly legitimate even if the person is never charged or convicted of committing a crime, so they may have an uphill battle here."

Difference being, there is a long history of search and seizure without warrant in the US in regards to smuggling, which goes back to at least 1790. Such things have been tested before the supreme court a number of times. What there is not is a history of suppression of free speech by the government for no good reason that has been OKed by the courts.

Ouch....

I'm watching this case with the type of morbid fascination usually reserved for watching a random dude run up behind a fat lady, and kicking her square in the ass. Then running because her fat ass can't catch him.......

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Waste of time to appeal...

The U.S. DOJ is controlled by the entertainment industries, who have little contact with reality. The government knows no one can overrule them, so they don't really care. The U.S. DOJ fully believes U.S. law should be valid and upheld througheout the world.

The DOJ is far far more concerned with "illegal file sharing" and that ilk than it is with real things like terrorists attacking U.S. citizens.

Re: Fourth Amendment

I'm wondering why Puerto 80's lawyers haven't taken up the Second Amendment, formed a militia and started sending threatening copyright shakedown letters for mass business infringement and held the DoJ at gunpoint.

Fed Police power

The fedeal government has no authority to enforce copyrights claims or to punish for copyright violations. The power to punish was not included in the power to grant copyright. Anyone with an IQ above 3 can see through study of Article I, Section 8 that the powers are extremely restricted and do not include implied or inherent powers.

Take the power to coin money as a prime example. Under the common misconceptions of implied or inherent powers OR the extension of powers under the necessary and proper clause, the legal community believes that the grant of a power in one area carries with it associated powers such as those of police power. But look at the power to coin money. Note that in the same clause where the power to coin money is granted is a separate grant giving power to set the value of that coinage. Under the common misconceptions the second grant is unnecessary. Then look at the next clause for an even greater proof. Article I, Section 8, Paragraph 6 is a grant to punish counterfeiting which proves beyond all doubt that the power to punish violations of laws does not automatically attach. Under the implied/inherent/N&P thinking, Article I, Section 8, Paragraph 6 is wholly unnecessary. Whenever one uses a reading/interpretation that negates the inclusion of another clause, that reading/interpretation is simply WRONG.